1. Dispute in the petition concerns property a residential house under survey No.0-315, situated in Mohallah Jhangi Jadeed, Rawalpindi City. It belonged to one Chaudhary Abdul Karim and was in possession of Feroze Din and his two sons, namely, Naveed and Haseeb as rent-paying tenants of the owner-landlord at the rate of Rs.200 per mensem. By sale-deed registered on 10-7-1983 Chaudhry Abdul Karim sold the house to Mohammad Khalil at the sale price of Rs.1,00,000. Sale- deed is Ext.A-1. On 28-11-1983, new purchaser claiming to be the landlord of the property applied to Rent Controller Rawalpindi Urban Area for ejectment of his tenants on the grounds of stated rent default with effect from the date of his purchase i.e. 3-7-1983 and his requirement for self- occupation of the house. Respondents submitted a joint defence. It was pleaded that Chaudhry Abdul Karim had agreed to sell the house in dispute to Haseeb at the agreed sale price of Rs.80,000 vide agreement dated 21-2-1983 and had also delivered possession of the house to Haseeb with express stipulation that thenceforth rent shall not be payable, and, therefore, possession of Haseeb respondent No.3 was in part performance of the sale agreement and was protected under section 53-A of the Transfer of Property Act. In regard to other two respondents, it was submitted that they were living with Haseeb being his father and brother; that respondent No.3 had already instituted a civil suit for specific performance of agreement to sell, therefore, ejectment petition could not proceed; that in default of service of a notice under section 13-A of Rent Ordinance VI of 1959 as amended, ejectment petition was not maintainable; that in view of preliminary objections listed at serial Nos. 1 and 2, relationship of landlord and tenant did not exist between the parties and the Rent Controller had no jurisdiction to entertain and try the ejectment petition.
2. On 11-1-1983; learned Rent Controller settled following preliminary issues:--
(1) Whether the relationship of landlord and tenant exists between the parties?
(2) Relief.
3. After settlement of issues, rent case was postponed for evidence of the parties. On behalf of Muhammad Khalil, his father acting as his special attorney appeared at the trial and recorded his statement. Copy of registered sale-deed Ext.A-1 was tendered in evidence and the case was closed. In defence, appears the solitary statement of Mohammad Haseeb who gave evidence about the sale agreement by Chaudhry Abdul Karim payment of Rs.30,000 in advance by him and filing of civil suit for specific performance in the civil Court. Copy of the plaint in the suit for specific performance Exh.R-1, copy of application Exh.R.2 and order sheet Exh.R-3 were put on record and defence was closed.
4. Upon consideration of this evidence, learned Rent Controller observed "By the above evidence produced by the respondents, it is proved that a civil suit for specific performance of a contract is pending with a civil Court, where the sale-deed in favour of petitioner is also challenged. The petitioner also did not deny these facts but showed his lack of knowledge. It is proved on record that the question of title is still to be determined by the civil Court having an ultimate jurisdiction over the question of title. The petitioner based his claim over the registered sale-deed, which has been challenged in the civil Court. In such circumstances, without determination of the title of the petitioner by a civil Court, he could not be considered as landlord for the purpose of Rent Restriction Ordinance. He may be directed for ejectment of respondent after clearance of his title which is already sub judice, before civil Court. Therefore, relying upon ).983 SCMR 1064, the relationship of landlord and tenant is not proved as m existence. Accordingly, the issue is decided against the petitioner". Consequently, ejectment petition was dismissed on 29-3-1984. Petitioner preferred an appeal to the learned District Judge, Rawalpindi who approved the approach of the Rent Controller to the ejectment case as also his conclusions and dismissed the appeal on 17-7- 1984. With this background, petitioner took up the matter in constitutional jurisdiction of this Court for quashment of the decision of the Courts below and for determination of the case in accordance with law.
5. Abdul Shakoor Peracha learned counsel for the petitioner argued that learned Courts below misconstrued the record and did not appreciate the true legal principles applicable to the facts of the case. It was submitted that agreement to sell was a mere fabrication which was put up to forestall and frustrate ejectment proceedings as also the payment of, agreed monthly rent to the new owner of the property. Learned counsel also submitted that the suit for specific performance filed by Haseeb failed on 23-11-1987 in the Court of Senior Civil Judge, Rawalpindi and appeal filed there against was dismissed by learned Additional District Judge, Rawalpindi, on 3-9-1988. Both the Courts concurred in holding the sale agreement to be a forged document.In these circumstances order of the Courts below directing the petitioner to establish his title in Court and then to file an ejectment petition is a clear instance of injustice. Muhammad Hanif Bhatti, learned counsel for the respondents refuted the arguments advanced on behalf of the petitioner and argued that since the title of the petitioner was defeasible and being defective, rule laid down in Rehmatullah's case reported as 1983 SCM R 1064 applied and the decision of the Courts below were neither erroneous nor without jurisdiction.
6. Having regard to the existing records and the principles of law applicable thereto, in my opinion, writ petition is bound to succeed. There is not much dispute about the facts in the case which are either admitted or proved. Chaudhry Abdul Karim was owner of the house in dispute. He sold it out to Muhammad Khalil on 30-7-1983 by registered sale-deed ExtA-1. Respondents were in possession of the house at the time of its sale as tenants holding under the former owner and paid him the agreed monthly rent. With the sale of the house, right to receive rent resting in Chaudhry Abdul Karim devolved upon the new purchaser of the property. Upon purchase, petitioner, by operation of law was constituted landlord with right to receive the rent of the property taken by him from Chaudhry Abdul Karim. From 30-7-1983, till-to-date, not a single penny was paid to the owner towards rent of the house. In terms of section 54, a contract for sale of immovable property does not, of itself, create any interest in its subject-matter. It merely create a right to the sale of the property upon agreed terms. Unless sale-deed is completed in accordance with requirements of law, title in the property is not transferred. From the copies of judgments given in the suit for specific performance, two Courts after careful consideration of the evidence led in the suit have found that agreement to sell was a fabrication and a forged document. In the ejectment case, neither the agreement to sell was put in evidence nor its execution proved by calling the required evidence. Only copy of the plaint in the suit for specific performance and order sheet maintained by the trial Court were tendered in evidence. Mere oral statement, in itself, was insufficient to attract the rule laid down in Rehmatullah's case. Rent Controller was obliged to determine the issue of relationship of landlord and tenant in accordance with the evidence existing on record and so was the obligation of the learned appellate Court. Mere plea of part-performance without required evidence in its support was not sufficient for the Rent Controller to surrender his jurisdiction to the Civil Court. Upon present records, course adopted has caused injustice. It may be noted that Haseeb respondent No.3 was a Clerk to a counsel practising in District Courts at Rawalpindi. It is manifest that the ejectment case has not received due care and attention in the Courts below.
7. Conclusions arrived at are unsustainable. In this behalf, reference with advantage can be made to the decision of the Supreme Court in Allah Yar and others versus Additional District Judge and others 1984 SCM R 741. In view of the order I propose to make it is not necessary for me to examine evidence in depth and record binding determinations so as to avoid prejudice to the rights of the parties which have yet to be determined by the Courts invested with jurisdiction under Rent Ordinance. All I want to say is that the case has not been properly adjudicated upon in accordance with law.
8. In view of the above, writ petition is allowed, decision dated 17-7-1984 of learned District Judge Rawalpindi is set aside and is declared to have been made without lawful authority. Necessary corollary of the above as that the appeal filed by the petitioner before learned District Judge, Rawalpindi shall be deemed to be still pending to be dealt with in accordance with law upon the existing records.
9. Records be returned. Parties have been directed to enter appearance in the Court below on 7-1- 1989.